February 15, 2017
Republican administrations tend to put more emphasis on helping employers comply with Occupational Safety and Health Administration requirements than on punitive enforcement actions. President Trump is familiar with OSHA because contractors on his construction sites have had run-ins with the agency, so it is even more likely that his Department of Labor will prioritize educational and voluntary programs over high-profile fines and litigation.
Also, the new president recently issued an executive order requiring agencies to repeal two regulations for each new one proposed—and OSHA has a lot of regulations. Its injury and illness electronic recordkeeping rule, issued during the last year of the Obama administration, may be cut back. This rule (1) requires most employers to electronically submit injury and illness data, which may then be published on OSHA’s website, and (2) has an anti-retaliation provision that prohibits or limits some safety incentive programs and post-accident drug testing. (The rule has been adopted in North Carolina, but not in South Carolina or some other states with state OSHA plans.)
In addition, under President Obama, OSHA relaxed the standard of proof in whistleblower cases; expanded the joint employer doctrine; and pursued restroom access for transgender employees as a safety issue. The Trump administration is expected to reverse course on these issues.
However, long-standing OSHA requirements will continue to be enforced, such as those governing hazard communication, machine guarding, and lockout/tagout to prevent unexpected machinery startups, among others.
Also, the penalties for OSHA violations increased recently after Congress passed legislation requiring federal agencies to adjust their civil penalties for inflation. The maximum fine for a willful or repeat violation is now over $124,000 per violation, except in North and South Carolina and some other states with state plans, where it is still $70,000. Since the increased penalties resulted from Congressional action, the new administration is not likely to roll them back.
For these reasons, it remains as important as ever for employers to have a comprehensive safety program. This means looking at what OSHA standards apply to a worksite and addressing them; doing an overall job safety analysis of the workplace and following up on potential hazards; and investigating injuries, even if they are relatively minor, and taking steps to keep them from happening again.
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